What are the legal responsibilities of companies hiring foreign personnel for employment?
With the development of economic globalization, the exchanges between countries are getting closer and closer. Whether it is business or political exchanges, or knowledge and cultural exchanges are being carried out closely. Therefore, many foreigners come to work in our country’s enterprises. There are also many people. So what are the legal responsibilities of enterprises for hiring foreign personnel?
Article 80 of the “Outbound Immigration Management Law” stipulates: “Any person who introduces illegal employment to a foreigner shall be fined 5,000 yuan for each person illegally introduced to the individual, with a total fine not exceeding 50,000 yuan; and 5,000 yuan for each person illegally introduced to the unit. A fine not exceeding 100,000 yuan in total; confiscation of illegal income if there is illegal income. A foreigner who illegally employs a person shall be fined 10,000 yuan for each person employed illegally, with a total fine not exceeding 100,000 yuan; if there is illegal income, the illegal income shall be confiscated . ”
It is not surprising that companies now employ foreign personnel for employment. It can be said that it is very common, but for these foreigners, their country is different from China in all aspects of society. Therefore, in order to better manage these foreigners, the state has introduced relevant foreign employment laws.
Determination of terms of employment contracts for hiring foreign personnel
Article 22 of the “Regulations on the Administration of Employment of Foreigners in China” states: “The wages paid by the employer for the employment of foreigners shall not be lower than the local minimum wage standard.”
Article 23 stipulates: “The working hours, rest, vacation, labor safety, health, and social insurance of foreigners employed in China shall be implemented in accordance with relevant state regulations.” This regulation clearly states that the application of China ’s labor standards law by foreign personnel is within the minimum wage The five aspects of standards, working hours, rest and vacations, labor safety and health, and social insurance reflect from the side that matters beyond these five aspects can be allowed to be freely agreed by both parties.
In the current situation where the employment of overseas employees in the Mainland is not covered by the Labor Contract Law, when signing labor contracts with overseas employees, the minimum wage standard, working hours, rest and vacation, labor safety and health, and society should be set. The five aspects of insurance are clearly specified as mandatory provisions of a labor contract.
(1) Minimum wage
For foreign employees employed by employers in accordance with the law, the salary standard after providing normal labor must not be lower than the local minimum wage standard.
(2) Working hours
Foreign employees employed in accordance with the law also apply the relevant working hours regulations of China’s labor law. Foreign employees also have the right to receive overtime pay if they work overtime during legal working hours. Therefore, for foreign employees employed according to law, if they work outside the legal working hours, the employer should pay overtime wages according to law.
For overseas employees with relatively high management positions and relatively high salaries, in order to avoid disputes overtime in the future, employers can agree in the employment contract to apply irregular working hours to their working hours, but they must be approved by the labor security department in accordance with regulations. This reduces the cost of overtime.
(3) Take a break
Foreign employees employed by employers in accordance with law have the right to rest and vacation as provided by national laws and regulations. This means that foreign employees also enjoy statutory holidays such as annual leave, statutory holidays, wedding leave, and maternity leave.
In practice, many employers take into consideration that foreign employees work far away in other countries, so the two sides agreed to give foreign employees a certain annual vacation for their return to reunite with their families. This is an employer benefit, not a legal holiday.
However, family leave, etc., and statutory annual leave are neither duplicated nor mutually offset. Therefore, as far as possible, foreign employees should be arranged to use up the relevant statutory holidays to avoid incurring additional legal costs.
(4) Social insurance
Article 11 of the “Regulations on the Administration of Employment of Taiwan, Hong Kong and Macao Residents in the Mainland” states: “Employers shall sign labor contracts with hired Taiwan, Hong Kong and Macao personnel and pay the society in accordance with the Provisional Regulations on the Collection and Payment of Social Insurance Fees Insurance premiums. “The issue of social insurance payments for foreign employees has also received attention.
Article 97 of the “Social Insurance Law” stipulates: “For foreign employees who are employed in China, they shall participate in social insurance with reference to the provisions of this Law.” The “Interim Measures for Foreigners to Participate in Social Insurance for Employment in China” implemented by the Ministry of Human Resources and Social Security on October 15, 2011 clearly stipulates that employers must participate in social insurance, and must pay for the prerequisites for social insurance for foreign employees, The types of social security, the enjoyment of social security benefits, the relief methods for non-payment of social security, and other conditions are specified.
Therefore, foreign employees, like domestic workers, must pay social insurance in accordance with the law. Employers should abandon the exemption clauses agreed with employees in the past, and participate in social insurance for overseas employees in accordance with the law to prevent employees from claiming huge compensations for dismissing labor contracts on the grounds that employers have not participated in social insurance.
What we need to understand is that although foreigners come to work in public institutions in our country, we should strictly implement the entry procedures required by national laws to handle the foreigner entry procedures, because this can ensure fairness and justice.
Employment Procedures for Foreign Talents
Step 1: Physical examination
When the enterprise and foreign talents have reached the intention of hiring, they must first go through a medical examination when they begin to apply for employment.
1. Physical examination hospital: foreign public hospital or Beijing Entry-Exit Inspection and Quarantine Agency
2. Statutory medical examination items: Inspection items include routine clinical medical examinations and laboratory tests.
Clinical medical examination items: internal medicine, surgery, ophthalmology, X-ray examination, electrocardiogram.
Laboratory test items: HIV antibodies, STDs (syphilis).
Step 2: Apply for Employment Permit
1. Office: Beijing Employment Service Center
2. Office Address: Lobby, 1st Floor, Beijing Labor Market, 5 Yongnei West Street, Xuanwu District
3. Required materials:
1) A copy of the business license of the legal person (original and photocopy), a copy of the company’s articles of association, a certificate of approval (foreign-funded enterprise), a joint venture contract (joint venture, cooperative enterprise)
2) Written application report for hiring foreigners (specify the reasons for employment, position, and seal of the employer)
3) The intention of the company to hire foreigners. The position of deputy general manager or above shall be decided by the board of directors.
4) Foreigner’s Chinese resume and job qualification certificate (a copy of academic credentials or professional skills qualification certificate) and a copy of passport (requires a college degree and more than two years of relevant work experience);
5) Health certificate of foreigner recently issued by the medical institution (copy)
6) A copy of the employment application form for foreigners (stamped at the applicant unit), and the recent two-inch ID photo is posted on the form.
7) The domestic company must bring the original and copy of the social insurance registration certificate for the employment of foreign personnel
8) Original letter of introduction of the unit and the identity card of the manager.